Aerial drones bill causes flap between attorney general and ACLU

Posted April 11, 2013, at 7:19 p.m.
Last modified April 12, 2013, at 10:50 a.m.
Shenna Bellows, executive director of the American Civil Liberties Union of Maine, (left) describes how various models of airborne surveillance drones work on Tuesday, Feb. 26, 2013, at the State House in Augusta. Looking on is Rep. Matthew Moonen, D-Portland.
Shenna Bellows, executive director of the American Civil Liberties Union of Maine, (left) describes how various models of airborne surveillance drones work on Tuesday, Feb. 26, 2013, at the State House in Augusta. Looking on is Rep. Matthew Moonen, D-Portland. Buy Photo

AUGUSTA, Maine — Work on a bill that would set parameters for law enforcement officers’ use of aerial drones will continue for another two weeks following the presentation of competing amendments Thursday to the Legislature’s Judiciary Committee.

The committee voted unanimously to table the bill, LD 236, An Act to Protect the Privacy of Citizens from Domestic Unmanned Aerial Vehicle Use, after lengthy presentations by the American Civil Liberties Union of Maine and Attorney General Janet Mills.

The drone bill has been under consideration by lawmakers for weeks, though negotiations on adjustments to it have intensified in recent days. Following those discussions, the ACLU proposed an amendment Thursday morning that would replace the bill, which is sponsored by Sen. John Patrick, D-Rumford. The ACLU’s amendment seeks to allow the use of aerial drones by a wide range of private entities and creates guidelines for use by law enforcement agencies, including in emergency investigatory activities when gaining a search warrant is not immediately feasible. However, the ACLU would require law enforcement to obtain a search warrant or court order within 48 hours.

“Law enforcement should be able to act in emergency situations as time requires,” Zach Heiden, ACLU-Maine’s legal director, said. “The heart of this is the requirement that for criminal investigations and criminal prosecution purposes, if the police are going to use a drone for surveillance that they go to a magistrate, show probable cause and get a warrant.”

Mills said she wants court orders or search warrants to result from the submission of detailed information such as the proposed duration of drone use and where the drones would fly and where they wouldn’t, for example. However, she wants law enforcement agencies to have more leeway to employ a drone in high-stakes, breaking investigation and said the 48-hour rule proposed by the ACLU is not practical in some situations and areas of the state.

“I want to protect the public’s safety,” Mills said. “I want public agencies to be able to use these pieces of equipment. This bill does not allow that. The [American Civil Liberties Union]’s amendment does not allow that. … I’m concerned that if this bill was enacted, it would become the law of unintended consequences.”

Mills proposed a moratorium on the use of drones until July 2, 2014, with an exception for emergency use of the devices for non-investigatory purposes. The moratorium would allow time to send the issue of using drones to the Maine Criminal Justice Academy’s board of trustees for further study.

“You don’t simply look at the deployment of a drone, per se,” said Mills. “It makes a difference whether it’s 10 feet above your head or 1,000 feet above your head.”

That was one of a long list of considerations Mills suggested lawmakers put into the law. One major disagreement between Mills and the ACLU involves whether to write an exclusionary rule into the bill. The exclusionary rule has basis in the U.S. Constitution and has to do with the illegal collection of evidence by prosecutors or law enforcement officers. There was also some disagreement about the level of evidence required to secure a search warrant or court order for the use of aerial drones. Lawmakers asked Mills and the ACLU to continue working on the bill and to bring it back to the committee within two weeks.

The committee also had problems with another bill, LD 415, An Act to Require a Warrant to Obtain the Location Information of a Cell Phone or Other Electronic Device, which has to do with police using information from cellular telephone companies to locate or track suspects in crimes.

Maj. Christopher Grotton, special services director for the Maine State Police, objected to some provisions within the bill, including a clause that requires timely notification to a suspect if police are investigating. As far as obtaining court orders or warrants to request the information, Grotton said departments across Maine already do that.

“This is always approved by a third-party magistrate,” Grotton said. “That’s our practice.”

After the presentation of two amendments to the bill, both of which failed, the committee voted 7-4 to recommend that the bill ought not pass. But that doesn’t mean the issue is dead. Sen. Linda Valentino, D-Saco, the Judiciary Committee’s Senate co-chairwoman, said a similar bill is coming to the committee in the coming weeks.

CORRECTION:

An earlier version of this story incorrectly stated that Attorney General Janet Mills favors an amendment that is more restrictive than one being proposed by the American Civil Liberties Union of Maine. The ACLU proposes to require law enforcement entities to obtain search warrants or court orders within 48 hours of emergency use of a drone while Mills favors giving law enforcement more leeway, as is spelled out in the U.S. Constitution.

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